Volume 11 — New York Criminal Reports

<p>Appeal from a judgment, convicting defendant of carrying on the business of a barber on Sunday.</p>

<p>Appeal from a judgment of conviction and orders denying motions for new trials made by said defendants respectively, on the ground that the verdict was 'Contrary to law and against the evidence, and from an order denying motions for a new trial on the ground of newly discovered evidence.</p>

<p>Evidence—Judicial notice.</p> <p>Judicial notice will not be taken of a city ordinance. It must be proved in the manner prescribed by law, and the burden of its proof rests with the prosecution.</p>

Appeal fro-m an order discharging relator on habeas corpus. On or about the 31st day of May, 1895, one Edwin I. Brooks made complaint before Edwin C. Smith, a justice of the peace in and for the town of Brighton, Monroe county, that the game laws of the state had been violated within the county by divers persons to him unknown, and asked that subpoenas be issued for certain persons named in the information sworn to by him. The relator was not one of the persons so named.

<p>1'. Trial—Charge—Comments of judge.</p> <p>The fact that the judge has commented upon the evidence, and, perhaps in some expressions, has indicated the bent of his own mind, is not a subject for. adverse criticism, so long as he did not invade the province of the jury and withdraw from them the consideration of any facts, or lead them to suppose that the determination was not wholly with them.</p> <p>2. Homicide—Proof.</p> <p>The evidence, in this case, was held sufficient to sustain the inference drawn by the jury from it, on the defendant’s having de- ■ liberately murdered the deceased.</p>

<p>Í. Homicide—Conspiracy.</p> <p>Where an unarmed peace officer, discharging his duties in a gentle and considerate mariner is thrown entirely oil his guard by the apparently docile and submissive way in which his prisoners are allowing him to conduct them to the police station, and such prisoners are two desperate men, one of whom is the defendant, who carry concealed weapons of an unusually deadly and dangerous character, but both of them are submissive and quiet until the defendant utters his warning cry to “let her go,” when each springs into the utmost activity and the defendant strikes the officer with a blow from the butt of his revolver and at almost the same instant of time the bullet of the other prisoner completes the work of death, it is sufficient to establish a perfect and complete combination and concert of action between the defendant and his associate.</p> <p>2. Same.</p> <p>It matters not whether such understanding or agreement was formed as part of a general policy adopted by the defendants while following a life of crime, or an instantaneous compact, born of the exigency of the occasion. The deliberation and premeditation essential to constitute the crime may have existed in either case.</p>

<p>Appeal from judgment of the court of general sessions of the peace of the city and county of New York, entered upon a verdict convicting defendant of the felony of murder in the first degree.</p>

<p>Criminal law—Indictment—Less offense.</p> <p>Upon the trial of an indictment for murder, defendant cannot be convicted of an assault.</p>

James F. Cleary was convicted of recording and registering Lets and wagers and of selling pools on horse races on April 25,1895. Defendant demurs to the indictment.

<p>1. Bail—Felony.</p> <p>In cases of misdemeanor, the right to bail is absolute, but in case of felony the right to bail is one of discretion to be exercised’ by the judge of the court having jurisdiction of the case on trial.</p> <p>2. Same—Insanity.</p> <p>Admission to bail in case of a felony will, where the defendant pleads present insanity in addition to not guilty, be refused until the determination of the former issue.</p>

<p>Seneca Indians—Unlawful fishing.</p> <p>Section 102, chap. 974 of 1895, prohibits a Seneca Indian from killing fish by exploding dynamite in the Allegany river within the reservation of his tribe.</p>

Demurrer by defendant to ah indictment, under section 508 of the Penal Code, on the ground that it did not state facts sufficient to constitute a crime.

<p>1. Criminal law—Sentence.</p> <p>Section 221 of the Penal Code gives the court power to sentence for a term of five years, and to impose imprisonment for nonpayment of a fine in addition to the absolute imprisonment.</p> <p>2. Same—Confinement for fine.</p> <p>Defendant cannot be confined at hard labor in a state prison as an alternative to the payment of a fine.</p>

<p>Í. Constitutional law—Police power.</p> <p>Section 364a of the Penal Code does not deprive the owners of their property without due process of law.</p> <p>2. Same.</p> <p>Such section is an exercise of the police power of the legislature to prevent frauds upon the public by requiring that .all silverware so marked shall contain a fixed quantity of silver.</p> <p>3. Same.</p> <p>The effiacement of the mark from such merchandise does not destroy the property or deprive the owner thereof without due process of law.</p> <p>4. Same—Indictment—Statute.</p> <p>An indictment for a statutory offense charging the facts constituting a crime in the words of the statute, and containing averments as to time, place, person and other circumstances to identify the particular transaction, is good as a pleading and justifies putting defendant on trial.</p> <p>5. Same—Defective.</p> <p>Failure to allege, in an indictment under this section of the Penal Code, that the word “Sterling” indicated and denoted that the said articles were then and there sterling silver, is fatal to the indictment.</p> <p>6. Same</p> <p>When an indictment is framed upon a statute, it must state all the circumstances which constitute the definition of the crime in the statute, so as to bring the accused precisely within it.</p>

<p>1. Reformatories—Religious.</p> <p>The legislature has imposed upon magistrates an absolute duty to commit persons guilty of the offenses named in the statutes to institutions of the same religious faith as such persons or their parents, whenever practicable.</p> <p>2. Same.</p> <p>The mere statement of the committing magistrate that it was im- ■ practicable, unless borne out by facts, will not warrant him in depriving the child of the care and religious training of those who the law says should be her proper guardians.</p>

Demurrer to an indictment for introducing a forged and false book of accounts in evidence on an examination in supplementary proceedings.

Robert Fitzsimmons was indicted for manslaughter in the first degree in causing the death of one Biordan in a sparring match. The defendant, a professional' pugilist, and one Biordan, who was known as 'his sparring partner, were advertised on November 16, 1894, to give a sparring exhibition at the Grand Opera House, Syracuse, N. Y. After some preliminary exhibitions by other persons, the defendant and Biordan appeared upon the stage and began to spar.

<p>Juiy—Waiver.</p> <p>The right of defendant, in court of special sessions, to a trial by jury continues unaffected and available to him until testimony actually is taken upon the trial, notwithstanding his previous allegation and waiver.</p>

<p>Disorderly person.—Arrest without warrant.</p> <p>, Section 177 of the Code of Criminal Procedure, which allows a peace officer to arrest a person for a crime committed or attempted in his presence, does not apply to a disorderly person.</p>

<p>Appeal from a judgment, adjudging the defendant to be a disorderly person for neglecting to support his wife, and requiring .him to give an undertaking under subd. 1, section 901 of the Code of Criminal Procedure.</p>

<p>'Appeal from judgment of a police justice, for violating a village ordinance.</p>

385 of 1870, as amended by tihap. 622 of 1894, which makes it a crime for a contractor with a municipal ’’corporation, for the construction of public works to employ an alien as a laborer on such work. ,

<p>1. Appeal—Verdict.</p> <p>The appellate court is not justified in interfering with the verdict of the jury, where the facts are reasonably capable of diverse or opposing inferences, unless the court is satisfied, from a review of the testimony, that injustice has probably been done.</p> <p>2. Evidence—Proof of other crimes.</p> <p>Where evidence is competent, its exclusion is not called for, because it tends to establish the commission of another crime by some one else.</p> <p>3. Appeal—Striking out evidence.</p> <p>The refusal of the court to strike out the opinions of experts does not call for a reversal of the judgment, where they were competent and proper evidence when received; in such case, the court has the right to let the evidence stand for what it is worth, although disproved.</p> <p>4. Same—Exception.</p> <p>An exception to the entire charge does not benefit the defendant.</p>

Proceedings against Mary Howard for selling intoxicating liquors on Sunday. Defendant moves that she be discharged, on the ground that her arrest was illegal,- and that the magistrate therefore acquired no jurisdiction.

<p>1. Conspiracy—Corporate officers.</p> <p>Individuals cannot shield themselves from the consequences of wrong doing by pleading that their wrongful acts were corporate-acts.</p> <p>2. Same—Restraint of trade.</p> <p>In ease of conspiracy in restraint of trade, the character of the trade is immaterial if unlawful.</p> <p>3. Same—Sale of cigarettes to minors.</p> <p>Section 90 of the Penal Code should not be construed so sweepingly as to hold that it takes the entire trade out of the prohibition against monopolies.</p> <p>4. Same—Public welfare.</p> <p>Where actual or possible public injury does not arise from the business methods of individuals or corporations, the natural law of supply and demand may be depended upon to protect the public welfare.</p> <p>5. Same—Competition.</p> <p>A trading corporation is entitled to all the advantag-es it can secure under fair and free competition, but its officers and agents may become criminally liable if they confederate to secure a monopoly by threats and menaces directed against competitors to force and coerce them to relinquish the rights to the fullest enjoyment of which all are entitled.</p>

<p>Appeal from judgment rendered by the Justice of the Eighth Judicial District Court., Action for the recovery of a penalty; upon the relation of the Commissioner of Agriculture, under chapter 338 of the Laws of 1893.</p>